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I think the Justices are smart enough to understand that their authority is a product of social consensus, not anything innately derivative of their position. They understand that since Conservatives approached a solid majority on the Court Blue Tribe has pivoted to attacking the court's foundational social consensus directly with calls for court packing, smearing of justices and calls for their impeachment, and so on. They appear to be attempting to balance exercise of their power with maintenance of that power. I'm skeptical that such a balance is possible, but they've certainly pushed harder toward exercise than I expected, so I imagine we'll see.
I still do not expect the Court's foundations to survive long-term; there is no reason for Reds to continue investing faith in them if they cannot deliver, and there is no way for them to deliver without Blues killing the court. This realization undermines the social consensus foundation from the Red side, and we converge on both sides admitting more or less openly that the Court is only legitimate when it delivers their specific preferred outcomes, which is isomorphic to the court having no legitimacy at all.
The entire point of a Supreme Court is to settle tribal conflict. The court can't reliably perform that purpose now, and its ability will only further diminish over time.
Except that the blue tribe controls what legitimacy means. Once they have the court making 100% Blue decisions again, it'll be "legitimate" except for a few malcontents in the dying remains of the more radical part of Red. The bulk of Red will accept the court no matter what, because they accept the legitimacy of institutions axiomatically.
Eh, I dunno about that. There's a long history of back and forth about which party is the "defender of the Constitution" and such. They both have held that mantle at different times pretty strongly in the last even 20 years only. Sure, Democrats are playing their hand pretty strong, probably too strong, recently (junk like "democracy dies in darkness" and all that, great on paper, even true on paper, horribly mangled job in practice). Democrats cry wolf about a lot of things. But not Trump. This dude actually jokes around about suspending the Constitution which is not cool and not-so-jokingly asks about deploying troops domestically which we've only seen in living memory a few times in the 60s and once in '92 for the LA race riots. The dude doesn't even pay lip service to checks and balances and admires dictators.
Why do you care about this, and why should anyone else care about this? The Constitution is dead, and there will be no resurrection. I do not believe that it protects me or my tribe in any meaningful way, and I do not see why I should respect claims of its protection put forward by other tribes. Constitutional claims are useful when they convince other people to drop opposition to one's values or goals. There is no reason to allow them to obstruct one's own values or goals. The constitution means whatever five justices say it means, without limit; benefits are entirely derived from controlling the mechanisms of interpretation, not the document being interpreted. If you have political and social control, you don't need the Constitution, and if you lack it, the Constitution will not help you. This is how the document observably works, and knowledge that this is how it observably works is now reasonably common across the population, and will only grow increasingly common over time as the contradictions inherent to the system continue to express themselves.
Deploying troops domestically was the correct response to the Floyd riots, and the failure to do so seriously damaged what remains of our country. The riots were the culmination of Blue Tribe's long-established strategy of employing organized, lawless political violence to secure political and social power, and they succeeded to an unbelievable degree specifically because no one was willing or able to deploy the appropriate response of overwhelming lawful force on the part of the authorities. That failure made the culture war much, much worse in a way that probably cannot be fixed.
Trump is not a unique threat. He exists because a critical mass of Red Tribe has lost faith in the existing system and wishes to coordinate meanness outside it. If he is finally destroyed that critical mass will find some other avatar or method to coordinate meanness through. They will continue to do so until either they find an effective method to obtain real address of grievances, or until society suffers a fatal rupture. The later seems, admittedly, a more likely outcome, but the former should not be underestimated. The current systems which prevent redress seem to me much more fragile than they generally appear.
I don't think this is true. If the supreme court did things obviously false, and the executive disagreed, on something that mattered, and had popular opinion on his side, I don't think there'd really be too much trouble with him doing what he wanted.
This is just false. Supreme court justices are not infrequently honest, and trying to do interpretation, not fabrication. At the very least, they always are pretending to be interpreting the text, which does provide constraints on their behavior.
Treating the constitution with respect is a valuable norm because it does, in fact, constrain behavior. Less than it used to, as people kept stretching things, but it does constrain behavior, and usually in ways that make things better.
I'm not claiming the Court can't be defied. Obviously it can be, and in fact several of its recent pro-2A findings are being defied at this very moment in various states, most notably New York and California, and have been for years now. I'm claiming that to the extent that any outcome can be attributed to "The Constitution", it is actually happening because the Justices want it to happen, not because of the ink on the paper. There is no ground reality, there is no platonic form, and anyone who believes otherwise is fooling themselves. Abortion has both been protected and not protected by the Constitution, and the answer to the question of which state was "correct" is mu.
It is of course the case that things happen because they (in some sense) want them to happen; actions happen by agents. But pretty often, the reason why they want it to happen is because that's what they think the Constitution says, and they're trying to be faithful interpreters.
Why not? I think language has meaning.
This particular piece of language has managed to hold enough people in its sway that something vaguely approximating its meaning has been the basis by which we govern the United States of America.
If you try to strip out the Constitution from your understanding of the United States, you will understand it worse, not better.
No, it's not moot. The norm of following the Constitution is important and a valuable check against limitless power-seeking. That norm means that it's useful that we should try to care what the Constitution says. Further, interpretation socially recognized as correct helps to confer legitimacy. Social recognition of correctness of interpretation tends to correlate with correct interpretation loosely, at least, because many people can read.
Language has meaning to the extent that people are willing to cooperate in building and maintaining that meaning together. If they are not, then it cannot. For any deeper "meaning" than that, I think you need something approximately like an appeal to God. I'm willing to accept such appeals, but others are very clearly not, and neither you nor I have any means by which to compel such acceptance.
And it just so happens that "faithful interpretation" consistently results in judgements that match their own perceptions of what is just and good, and sometimes no more than what is expedient. Any contradictions between these judgements and the text itself are easily resolved by words words words. I'm given to understand that "emanations" and "penumbras" are sometimes involved.
In the past, certainly. In the present, not really, no. In the future, not at all, I should think. Common knowledge and path dependency trump all other factors. It is certainly true that understanding the Constitution is necessary to understand how we got to where we are now, and the short version is that when it was written people really believed in it. But to understand where we are going, one needs to understand that this belief has largely died, and within a generation at most will be entirely extinct.
Supreme Court decisions favoring Blue Tribe observably have vastly greater impact than decisions favoring Red Tribe. Decisions favoring Red Tribe have been quite explicitly defied by lower courts, and the Supreme Court has then quite explicitly allowed such defiance to stand. I have no problem explaining such behavior: the Court realizes that its power derives from social consensus, not formal law, and recognizes that the consensus is against it and that further attempts to enforce the law will cost it more than it can afford. But if you believe the Constitution is really where their power springs forth, I'd be interested in your alternate explanation of such behavior. The Supreme Court sided with Dick Heller, yet he still can't have his gun. Why is that?
And given that I observe that decisions favoring my tribe are routinely nullified by Blues wherever they are stronger, why should I support upholding decisions favoring blues where we Reds are stronger? What value is secured by doing so?
I don't think I can offer a response better than that of Lysander Spooner:
The value of the Constitution came when it acted as a hard limit on the scope and scale of political conflict. People understood it to put many tools of power off the table for most practical purposes, removing them from the normal push and pull of the political contest. When we vote, the Constitution means that we're voting on policy, not on our basic political rights. If we lose, we suffer the other side's policies for a few years, but our rights are inviolate.
Only, they aren't, and anyone who believes otherwise at this point is quite foolish indeed. Progressives and their Living Constitution ideology mean that all bets are off, and indeed we have seen abuses and usurpations committed and upheld that would have been unimaginable as little as ten years ago.
"They wouldn't do that...." Yes, they would, for any value of "that" that one cares to specify. Americans, Blue or Red, are human, and "that" is what humans reliably do. Presidential candidates have campaigned on the idea of taxing religions they don't like, and openly laughed at the idea of constitutional limits on their ambitions. The theoretical grounding is solid, and the underlying logic is simply correct. Where your "norms" are supposed to fit into this picture I really cannot say.
Turn back to your favorite histories, and contemplate the fact that for all our technological sophistication, nothing about our core nature as humans has ever really changed. Humans will inevitably human. We create systems to control and channel our nature, but what our hands make, they can unmake as well. The Constitution arose from a specific culture, and it worked due to a specific set of cultural norms and assumptions. That culture changed, the norms and assumptions no longer apply, and so the Constitution is dead. To the extent that common knowledge of its death has not proliferated, it serves mainly to fool people into making sacrifices that will not be reciprocated by those who caught on a little quicker.
I don't have much to add, been reading you for a while, but just want to say that you have a fascinating blend of what I think is cynicism and naivete. You are aware of power law and how politics aren't real, just kayfabe thrown over the squabbling of groups in the game of power, but you also believe that, in your words, the hunger for justice and the desire to rebel against the intolerable is a part of human nature.
I find this fascinating. I don't believe the latter at all; in the words of greater men than I, all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.
I think cooperation is possible at scale, because societies that can coordinate meanness to other societies generally tend to do better than those who can't. They just need, I don't know, some kind of mutually acceptable target. Nothing unites people like a common enemy, especially if the enemy is existential.
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